Allowed

Smt.Neelamma W/O. Late Kenchappa v. Sri.Karthik

Karnataka HC18 Jul 2023WP/121561/2020

Case brief

AI extract

What is this about?

The High Court allowed the writ petition and set aside the trial court order dismissing an application for amendment under Order 6 Rule 17 CPC. The court held that since the suit was for injunction without title claim, the amendment did not alter the nature of the suit, but imposed a cost for the delay.

What did the court decide?

The impugned order dismissing the amendment application was set aside and the amendment application was allowed. The plaintiff was directed to pay a cost of Rs.5,000 to the defendant.

Smt.Neelamma W/O. Late Kenchappa Vs Sri.Karthik — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:7386 WP No. 121561 of 2020

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 121561 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. NEELAMMA W/O. LATE KENCHAPPA, AGE: 59 YEARS, OCC: AGRICULTURIST, R/O: SUBRAYANAHALLI, VILLAGE-583112, TALUK: SANDUR, DIST: BALLARI.

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…PETITIONER

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(BY SRI SRINAND A. PACHCHAPURE, ADVOCATE)

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AND:

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ROHAN HADIMANI T

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Digitally signed byROHAN HADIMANI T Location: High Court of Karnataka, Dharwad

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SRI KARTHIK S/O. LATE HULEPPA, AGE: 34 YEARS, OCC: DRIVER, R/O: NEAR JANDA KATTA, 14^TH WARD, SANDUR TOWN-583119, TALUK: SANDUR, DIST: BALLARI.

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SRI VISHNUVARDHAN S/O. LATE HULEPPA, AGE: 34 YEARS, OCC: KSRTC EMPLOYEE, R/O: NEAR JANDA KATTA, 14^TH WARD, SANDUR TOWN-583119, TALUK: SANDUR, DIST: BALLARI.

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SRI MARESH S/O. LATE SIDDAPPA, AGE: 49 YEARS, OCC: PASTOR IN CHURCH, R/O: CHORANUR VILLAGE-583128, SANDUR TOWN-583119, TALUK: SANDUR, DIST: BALLARI.

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…RESPONDENTS

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(BY SRI PRAKASH R. BADIGER, ADVOCATE.)

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2 - NC: 2023:KHC-D:7386 WP No. 121561 of 2020

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ORDER THEREBY QUASHING THE IMPUGNED ORDER PASSED BY THE CIVIL JUDGE & J.M.F.C., SANDUR, IN O.S.NO.73/2016, ON I.A.NO.VIII DATED 14/01/2020 AS PER ANNEXURE-G AND TO ALLOW I.A.NO.VIII FILED AS PER ANNEXURE-D DATED 01/04/2019 BY ALLOWING THIS WRIT PETITION, ETC.,.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for petitioner Sri Srinand A. Pachchapure and the learned counsel for respondents Sri Prakash Badiger.

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This petition is filed by the plaintiff being

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aggrieved by the impugned order passed on I.A.No.8 dated 14.01.2020, vide Annexure-G, in O.S.No.73/2016.

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The plaintiff filed a suit for the relief of permanent injunction against the defendants with respect to the property bearing Sy.No.88 measuring 03 acres situated at Tippanamaradi village, Choranur Hobli, Sandur taluk, Ballari district, by describing the boundaries therein, on 22.06.2016. Subsequently the defendants on entering appearance, filed their written statement on 25.07.2016

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3 - NC: 2023:KHC-D:7386 WP No. 121561 of 2020

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denying the averments of the plaintiffs taking contradictory stand that the case of the plaintiff is fraudulent one and the documents are created and the suit deserves to be dismissed. Thereafter the issues were framed and the plaintiff has adduced his evidence and has been cross examined, now the matter is posted for crossexamination of defendant DW.1.

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This being the state of affairs, the plaintiff filed an application under Order 6 Rule 17 of CPC for incorporation and amendment to delete the boundaries in

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the schedule shown to the south of the property from Huleppanavar land to Mechari Nagamma's land. This application came to be seriously opposed and contested by the defendants. On hearing both the parties, the trial

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Court has dismissed the application preferred by the plaintiff. The only reason for rejection of the application for amendment is that the plaintiff has not shown due diligence in carrying out amendment or seeking the amendment prayer prior to commencement of the trial.

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4 - NC: 2023:KHC-D:7386 WP No. 121561 of 2020

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Under the circumstances, the trial Court dismissed the application.

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Learned counsel for petitioner contends that

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though there is a delay, the trial has not been concluded and the amendment that is sought to be made is only with regard to change of boundary of south portion of the schedule property and not anything to do with the pleadings in the plaint or prayer sought. Therefore nothing much changes in the nature of the suit or the cause of action except the boundary of the southern portion of the schedule property. Therefore the amendment ought to have been allowed and the delay ought to have been condoned even if there is a slight delay as the trial Court still proceeding with the matter to decide the matter.

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Per contra, learned counsel for respondentsdefendants vehemently opposed the arguments put forth by the learned counsel for petitioner and contends that there is no illegality or perversity in the order passed by the trial Court as the plaintiff has not shown and has not

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5 - NC: 2023:KHC-D:7386 WP No. 121561 of 2020

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approached the Court well within the time to seek amendment as contemplated in the provision of Order 6 Rule 17 of CPC and slept over the matter despite the written statement having been filed as early as 25.07.2016 and now when the matter is posted for crossexamination of defendant No.1 in 2023, he has come up with this application to fill up the lacuna already created in the pleadings and in the evidence and the admission made by the plaintiff witness PW.1 and hence he seeks dismissal of the petition and to confirm the order of the trial Court.

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Having heard the learned counsel for petitioner

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as well as learned counsel for respondents, perused the impugned order.

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It is seen that the suit is filed by the plaintiff for the relief of permanent injunction not to interfere in the suit schedule property belonging to the plaintiff as against the defendants. The defendants filed the written statement contending that the plaintiff is not the owner, he has acquired right, title and interest over the property by filing

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a detailed written statement. The parties have adduced evidence, the cross-examination of DW.1 is yet to be completed. At this stage the application is filed.

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While considering the application for

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amendment, the trial Court is required to see whether the application is made in time and whether the application seeking amendment is going to change the nature of the property, the cause of action and the suit itself, creates any third party rights by virtue of amendment sought for. In the present case, apart from changing the boundary in the southern portion of the schedule, nothing much is sought to be changed. The plaintiff has adduced evidence and she has been cross examined by the defendant,

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certain elicitation are already made which cannot be disturbed and accordingly are not disturbed. Since this is a suit for bare injunction and not claiming any title or right over the property, the amendment sought for could be allowed without considering the main matter on merits.

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It would be the domain of the trial Court to

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decide the main matter in accordance with law on the merits of the case on the basis of the evidence adduced by the parties and the documents placed before the Court. At this stage to reject the application for amendment would not be right as there is no change of property or nature of suit or the cause of action by incorporating the amendment. However the fact remains that there is a delay in filing the amendment application which can be compensated by imposing cost on the plaintiff. Accordingly I pass the following:

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ORDER

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i) The petition is allowed.

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ii) The impugned order dated 14.01.2020, passed

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by the Civil Judge and JMFC, Sandur, in O.S.No.73/2016, on I.A.No.8, vide Annexure-G, is hereby set aside.

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iii) Consequently I.A.No.8 filed seeking for

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amendment is allowed. The Petitioner-plaintiff shall carryout the amendment in the plaint and furnish copy of

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the amended plaint to the Court by serving a copy of the

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same to the other side.

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iv) It is made clear that this Court has not

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expressed any opinion with regard to merits and demerits of the case.

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v) There is a delay in filing the application. Hence the plaintiff is directed to pay cost of Rs.5,000/- (five thousand rupees only) to the defendant on the next date of hearing before the trial Court.

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vi) All contentions of the parties are left open.

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Sd/JUDGE

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MRK

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List No.: 1 Sl No.: 11

Smt.Neelamma W/O. Late Kenchappa v. Sri.Karthik

Case brief

What is this about?

What did the court decide?

Smt.Neelamma W/O. Late Kenchappa v. Sri.Karthik

Case brief

What is this about?

What did the court decide?

What the court decided

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